NACS Scores Legal Victory on Tobacco Violations

The association and Orton, based in Walker, Minn., challenged the Food and Drug Administration's Center for Tobacco Products' (CTP) practice of issuing several tobacco violations for a single transaction. And this week, Administrative Law Judge Lewis T. Booker Jr. ruled in their favor.

According to NACS, its members have been concerned that retailers have been cited for multiple violations of the Tobacco Control Act in a single transaction — for example, failing to check ID and making an underage sale — and/or a single inspection.

In addition, retailers raised concerns that they have not had the right to a hearing to challenge a violation the first time they receive one from the CTP.

Booker ruled in favor of Orton on both of these matters. He decided that Orton’s failure to check an ID and sale of the product to an underage individual in one transaction amounted to one violation of the Tobacco Control Act. CTP had alleged they equaled two violations.

The judge also ruled that this was Orton’s first violation. The company had received a warning letter for a 2013 violation; however, it was not given a chance to ask for a hearing, Booker ruled.

According to NACS, CTP has 30 days from the date of this decision to appeal. If the agency does, the association "plans to continue to press for confirmation of the decision that retailers can only be cited for one violation of the law in a single inspection, and that retailers must be afforded due process on every alleged violation."

Orton Oil Co. operates 15 company-owned sites, provides wholesale gasoline and fuel to various dealer clients, and operates a bulk plant that services Walker and the surrounding areas with home heating fuel and resort gasoline.